HR 5057 IH
107th CONGRESS
2d Session
H. R. 5057
To prevent and punish counterfeiting and copyright piracy, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 27, 2002
Mr. SMITH of Texas (for himself, Mr. KELLER, Mr. SCOTT, Mr. SCHIFF, Mr. ISSA,
and Mr. DOGGETT) introduced the following bill; which was referred to the Committee
on the Judiciary
A BILL
To prevent and punish counterfeiting and copyright piracy, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Intellectual Property Protection Act of 2002'.
SEC. 2. FINDINGS.
(1) American innovation, and the protection of that innovation by the government,
has been a critical component of the economic growth of this Nation throughout
the history of the Nation;
(2) copyright-based industries represent one of the most valuable economic
assets of this country, contributing over 5 percent of the gross domestic
product of the United States and creating significant job growth and tax revenues;
(3) the American intellectual property sector employs approximately 4,300,000
people, representing over 3 percent of total United States employment;
(4) the proliferation of organized criminal counterfeiting enterprises threatens
the economic growth of United States copyright industries;
(5) in 2001, the United States entertainment software industry lost $1,800,000,000
in revenue, and the business software industry lost $11,000,000,000 worldwide,
due to piracy;
(6) in 2001, the motion picture industry lost $3,000,000,000 in potential
worldwide revenue, the music industry lost $4,300,000,000 worldwide, and the
publishing industry lost $636,000,000 worldwide, due to piracy, and these
figures do not include losses due to online piracy;
(7) the American intellectual property sector has invested millions of dollars
to develop highly sophisticated physical authentication features that assist
consumers and law enforcement in distinguishing genuine intellectual property
products and packaging from counterfeits;
(8) in order to thwart these industry efforts, counterfeiters traffic in,
and tamper with, genuine physical authentication features, for example, by
obtaining genuine physical authentication features through illicit means and
then commingling these features with counterfeit software or packaging;
(9) Federal law does not provide adequate civil and criminal remedies to combat
tampering activities that directly facilitate counterfeiting crimes; and
(10) in order to strengthen Federal enforcement against counterfeiting of
copyrighted works, Congress must enact legislation that--
(A) prohibits trafficking in, and tampering with, physical authentication
features of copyrighted works; and
(B) permits aggrieved parties an appropriate civil cause of action.
SEC. 3. PROHIBITION AGAINST TRAFFICKING IN ILLICIT PHYSICAL AUTHENTICATION
FEATURES.
(a) IN GENERAL- Section 2318 of title 18, United States Code, is amended--
(1) by striking the heading and inserting `Trafficking in counterfeit labels,
illicit physical authentication features, or counterfeit documentation or
packaging';
(2) by striking subsection (a) and inserting the following:
`(a) Whoever, in any of the circumstances described in subsection (c), knowingly
traffics in--
`(1) a counterfeit label affixed to, or designed to be affixed to--
`(B) a copy of a computer program;
`(C) a copy of a motion picture or other audiovisual work; or
`(D) documentation or packaging;
`(2) an illicit physical authentication feature affixed to or embedded in,
or designed to be affixed to or embedded in--
`(B) a copy of a computer program;
`(C) a copy of a motion picture or other audiovisual work; or
`(D) documentation or packaging; or
`(3) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5 years, or
both.';
(A) in paragraph (2), by striking `and' at the end;
(i) by striking `and `audiovisual work' have' and inserting the following:
`, `audiovisual work', `sound recording', and `copyright owner' have';
and
(ii) by striking the period at the end and inserting a semicolon; and
(C) by adding at the end the following:
`(4) the term `physical authentication feature' means any visually perceptible
hologram, watermark, certification, symbol, image, sequence of numbers or
letters, or other physical feature that either individually or in combination
with another feature is used by the respective copyright owner to verify that
a phonorecord, a copy of a computer program, a copy of a motion picture or
other audiovisual work, or documentation or packaging is not counterfeit or
otherwise infringing of any copyright;
`(5) the term `documentation or packaging' means documentation or packaging
for a phonorecord, copy of a computer program, or copy of a motion picture
or other audiovisual work; and
`(6) the term `illicit physical authentication feature' means a physical authentication
feature, that--
`(A) is genuine in origin, but, without the authorization of the respective
copyright owner, has been tampered with or altered for the purpose of inducing
a third party to reproduce or accept distribution of--
`(ii) a copy of a computer program;
`(iii) a copy of a motion picture or other audiovisual work; or
`(iv) documentation or packaging;
where such reproduction or distribution violates the rights of the copyright
owner under title 17;
`(B) is genuine, but has been distributed, or is intended for distribution,
without the authorization of the respective copyright owner and not in connection
with the lawfully made copy or phonorecord to which such physical authentication
feature was intended to be affixed or embedded by the respective copyright
owner; or
`(C) appears to be genuine, but is not.';
(A) by striking paragraph (3) and inserting the following:
`(3) the counterfeit label or illicit physical authentication feature is affixed
to, is embedded in, or encloses, or is designed to be affixed to, to be embedded
in, or to enclose--
`(A) a phonorecord of a copyrighted sound recording;
`(B) a copy of a copyrighted computer program;
`(C) a copy of a copyrighted motion picture or other audiovisual work; or
`(D) copyrighted documentation or packaging; or'; and
(B) in paragraph (4), by striking `for a computer program';
(A) by inserting `or illicit physical authentication features' after `counterfeit
labels' each place it appears;
(B) by inserting `or illicit physical authentication features' after `such
labels'; and
(C) by inserting before the period at the end the following: `, and of any
equipment, device, or materials used to manufacture, reproduce, or assemble
the counterfeit labels or illicit physical authentication features'; and
(6) by adding at the end the following:
`(f) CIVIL REMEDIES FOR VIOLATION-
`(1) IN GENERAL- Any copyright owner who is injured by a violation of this
section or is threatened with injury, may bring a civil action in an appropriate
United States district court.
`(2) DISCRETION OF COURT- In any action brought under paragraph (1), the court--
`(A) may grant 1 or more temporary or permanent injunctions on such terms
as the court determines to be reasonable to prevent or restrain violations
of this section;
`(B) at any time while the action is pending, may order the impounding,
on such terms as the court determines to be reasonable, of any
article that is in the custody or control of the alleged violator and that
the court has reasonable cause to believe was involved in a violation of this
section; and
`(C) may award to the injured party--
`(i) reasonable attorney fees and costs; and
`(ii)(I) actual damages and any additional profits of the violator, as
provided by paragraph (3); or
`(II) statutory damages, as provided by paragraph (4).
`(3) ACTUAL DAMAGES AND PROFITS-
`(A) IN GENERAL- The injured party is entitled to recover--
`(i) the actual damages suffered by the injured party as a result of a
violation of this section, as provided by subparagraph (B); and
`(ii) any profits of the violator that are attributable to a violation
of this section and are not taken into account in computing the actual
damages.
`(B) CALCULATION OF DAMAGES- The court shall calculate actual damages by
multiplying--
`(i) the value of the phonorecords or copies to which counterfeit labels,
illicit physical authentication features, or counterfeit documentation
or packaging were affixed or embedded, or designed to be affixed or embedded;
by
`(ii) the number of phonorecords or copies to which counterfeit labels,
illicit physical authentication features, or counterfeit documentation
or packaging were affixed or embedded, or designed to be affixed or embedded,
unless such calculation would underestimate the actual harm suffered by
the copyright owner.
`(C) DEFINITION- For purposes of this paragraph, the term `value of the
phonorecord or copy' means--
`(i) the retail value of an authorized phonorecord of a copyrighted sound
recording;
`(ii) the retail value of an authorized copy of a copyrighted computer
program; or
`(iii) the retail value of an authorized copy of a copyrighted motion
picture or other audiovisual work.
`(4) STATUTORY DAMAGES- The injured party may elect, at any time before final
judgment is rendered, to recover, instead of actual damages and profits, an
award of statutory damages for each violation of this section in a sum of
not less than $2,500 or more than $25,000, as the court considers appropriate.
`(5) SUBSEQUENT VIOLATION- The court may increase an award of damages under
this subsection by 3 times the amount that would otherwise be awarded, as
the court considers appropriate, if the court finds that a person has subsequently
violated this section within 3 years after a final judgment was entered against
that person for a violation of this section.
`(6) LIMITATION ON ACTIONS- A civil action may not be commenced under this
section unless it is commenced within 3 years after the date on which the
claimant discovers the violation.
`(g) OTHER RIGHTS NOT AFFECTED- Nothing in this section shall enlarge, diminish,
or otherwise affect liability under section 1201 or 1202 of title 17.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The item relating to section 2318 in
the table of sections at the beginning of chapter 113 of title 18, United States
Code, is amended to read as follows:
`2318. Trafficking in counterfeit labels, illicit authentication features,
or counterfeit documentation or packaging.'.
END